• About Health Care: Hepatitis C Litigation
  • June 23, 2004
  • Law Firm: McGlinchey Stafford, PLLC - New Orleans Office
  • The Louisiana Second Circuit Court of Appeal recently reversed the trial court's grant of a defendant's exception of prescription and held that the three-year prescriptive period for medical malpractice claims is unconstitutional as applied to the plaintiffs' claims. In Walker v. Bossier Medical Center, the plaintiff received a blood transfusion in 1981. In 1992, the plaintiff was diagnosed with hepatitis C, and in 1993, the plaintiff and her husband filed suit alleging strict liability. The defendant hospital filed a peremptory exception of prescription arguing that La. Rev. Stat. 9:5628 barred the plaintiffs' claims.

    The Second Circuit interpreted the issue as "whether the statute, as applied to a claimant ... whose condition made it impossible for her to know or for any physician to diagnose her disease within the statutory period of limitation comports with constitutional due process requirements." The court found that the statute as applied violated the plaintiff's due process rights, and further opined:

    To find [the statute] constitutional as applied to plaintiffs who suffer from diseases with latency periods which prohibit their manifestation and discovery until well after the three-year, event-oriented period provided [by the statute] would be to prevent a small number of the least blameworthy, yet most seriously injured claimants from having their day in court To do so would divest such plaintiffs of their fundamental right to due process through the legal system while allowing defendant health care providers to avoid accountability and litigation.

    Because of the importance of this case, the defendant will no doubt seek redress with the Louisiana Supreme Court.